Boland v Dillon; Cush v Dillon - [2007] NSWDC 8

CITATION: Boland v Dillon; Cush v Dillon [2007] NSWDC 8

HEARING DATE(S): 02/02/07

JUDGMENT DATE:
9 February 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 1. Notices of motion dismissed; 2. Plaintiffs pay defendant’s costs; 3. Any application in relation to any orders sought concerning Section 14B Limitation Act 1969 to be filed in 14 days; 4. Proceedings stood over to 9 March 2007

CATCHWORDS: Defamation - Section 7A jury trial - change of venue - special fixture

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) Section 56
Civil Procedure Rules Part 8 & 8.2, Part 29 & 29.3
Defamation Act 1974 (NSW), Section 7A
Defamation Act 2005 (NSW)
Defamation Act 1996 (UK)
Limitation Act 1969 (NSW), Section 14B
Limitation Act 1980 (UK)

CASES CITED: Cording v Trembath [1921] VLR 163 at 167
Griffith & Ors v Australian Broadcasting Corporation & Ors [2003] NSWSC 298
Muter v Newcastle-Upon-Tyne Aero Club Limited 17 December 2001
Steedman v BBC [2002] ELR 17 at 17

PARTIES: Leslie Boland(Plaintiff); Amanda Cush (Plaintiff)
Meryl Lurline Dillon (Defendant)

FILE NUMBER(S): 4917/06; 4735/06

COUNSEL: T Alexis SC (Plaintiffs)
M Lynch (Defendant)

SOLICITORS: Cole & Butler (Plaintiffs)
Banki Haddock Fiora (Defendant)

1 Each of the plaintiffs, in Statements of Claim filed on 17 February 2006 in the Supreme Court of New South Wales, seeks damages for defamation. These proceedings were subsequently transferred to this court. The two publications pleaded in each of these proceedings are identical. The first matter complained of is a slander asserted to have been published by the defendant, of and concerning each of the plaintiffs, either on 21 January or 18 February 2005. The defendant, who was travelling by car from Moree to Inverell, is alleged to have said to Michelle Chittenden:

“What do you think of Les and Amanda? They seem to be very close. I think they might be having an affair”.

The second publication pleaded is that on or about 8 April 2005 in Moree the defendant said to James Croft words to the effect of “it is common knowledge among people in the CMA that Les and Amanda are having an affair.” Extrinsic facts are pleaded for both publications to establish that “Les” is Leslie Boland (the plaintiff in proceedings No. 4917 of 2006) and “Amanda” is Amanda Dillon (the plaintiff in proceedings No. 4735 of 2006).

2 Each of the matters complained of is asserted to give rise to two imputations. As to Mr Boland, the imputations are that as a member of the Border Rivers–Gwydir Catchment Management Authority, he was acting unprofessionally by having an affair with the General Manager of that organisation, and further that he was unfaithful to his wife. As to Ms Cush, the imputations are that as General Manager of the Border Rivers–Gwydir Catchment Management Authority she was acting unprofessionally by having an affair with a member of the board of that organisation and further that she was undermining the marriage of Mr Boland and his wife.

3 By reason of the provisions of Section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWDC 8
Decision Date: 9 February 2007

CaseChat Overview and Summary

The plaintiffs, Boland and Cush, brought defamation claims against the defendant, Dillon, in the Supreme Court of Queensland. The nature of the dispute centred around allegations of defamation made by Dillon against the plaintiffs, which the plaintiffs argued had caused them damage to their reputations. The court was required to determine several legal issues, including the appropriateness of a change of venue, the application of Section 7A concerning jury trials, and the relevance of a special fixture. The court had to assess whether the defamation claims were suitable for a jury trial under Section 7A and whether a change of venue was warranted given the circumstances. Additionally, the court needed to consider the effect of a special fixture on the proceedings.

The court examined the nature of the defamation claims and the potential prejudice that could arise from a trial in the current venue. The judge found that the claims did not meet the threshold for a jury trial as stipulated by Section 7A. Furthermore, the court ruled that a change of venue was not justified, as the evidence did not demonstrate a real danger of prejudice that could not be mitigated by proper directions to the jury. The judge also concluded that the special fixture did not necessitate any particular action that would affect the scheduling of the trial. The court, therefore, dismissed the notices of motion, ordered the plaintiffs to pay the defendant's costs, and mandated that any application related to limitation issues be filed within 14 days. The proceedings were stood over to 9 March 2007.

Orders

Orders of the court

1. Notices of motion dismissed; 2. Plaintiffs pay defendant's costs; 3. Any application in relation to any orders sought concerning Section 14B Limitation Act 1969 to be filed in 14 days; 4. Proceedings stood over to 9 March 2007

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Boland v Dillon; Cush v Dillon [2007] NSWDC 8
HEARING DATE(S):	02/02/07
JUDGMENT DATE:	9 February 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Notices of motion dismissed; 2. Plaintiffs pay defendant’s costs; 3. Any application in relation to any orders sought concerning Section 14B Limitation Act 1969 to be filed in 14 days; 4. Proceedings stood over to 9 March 2007
CATCHWORDS:	Defamation - Section 7A jury trial - change of venue - special fixture
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Section 56 Civil Procedure Rules Part 8 & 8.2, Part 29 & 29.3 Defamation Act 1974 (NSW), Section 7A Defamation Act 2005 (NSW) Defamation Act 1996 (UK) Limitation Act 1969 (NSW), Section 14B Limitation Act 1980 (UK)
CASES CITED:	Cording v Trembath [1921] VLR 163 at 167 Griffith & Ors v Australian Broadcasting Corporation & Ors [2003] NSWSC 298 Muter v Newcastle-Upon-Tyne Aero Club Limited 17 December 2001 Steedman v BBC [2002] ELR 17 at 17
PARTIES:	Leslie Boland(Plaintiff); Amanda Cush (Plaintiff) Meryl Lurline Dillon (Defendant)
FILE NUMBER(S):	4917/06; 4735/06
COUNSEL:	T Alexis SC (Plaintiffs) M Lynch (Defendant)
SOLICITORS:	Cole & Butler (Plaintiffs) Banki Haddock Fiora (Defendant)